Opinion
CV144006577S
09-07-2017
Tyreese Bowens v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Tyreese Bowens, seeks habeas corpus relief from fifty years imprisonment, imposed after a jury trial, for the crime of murder. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Bowens, 62 Conn.App. 148, 773 A.2d 977 (2001); cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).
In 2003, the petitioner filed his first habeas corpus action, and the habeas court denied the petition, Bowens v. Warden, Superior Court, Tolland Judicial District, d.n. CV 03-0004111, (November 18, 2005), Elgo, J. The Appellate Court also affirmed that denial, Bowens v. Commissioner, 104 Conn.App. 738, 936 A.2d 653 (2007); cert. denied, 286 Conn. 905, 944 A.2d 978 (2008).
In his amended petition for the present case, the petitioner asserts claims of actual innocence; a due process violation based on the unreliability of eyewitness identification procedures; the ineffective assistance of defense counsel, Attorney Thomas Ullman; the ineffective assistance of previous habeas counsel, Attorney Frank Cannatelli; and cruel and unusual punishment because of the petitioner's youth at the time of the crime.
The respondent's return raises special defenses of procedural default, as to all claims, and res judicata, with respect to the first and third counts of the amended petition. The petitioner's reply avers that good cause and prejudice excuse procedural default.
I
Actual Innocence Claim
Habeas corpus relief in the form of a new trial based on actual innocence requires the petitioner to satisfy the criteria set forth in Miller v. Commissioner, 242 Conn. 745, 700 A.2d 1108 (1997).
The Miller criteria comprises a two-part test which requires a habeas petitioner asserting an actual innocence claim to prove, by clear and convincing evidence, that:
1. The petitioner is actually innocent of the crime for which he or she stands convicted; and 2. No reasonable fact finder would convict the petitioner of that crime after consideration of a combination of the evidence adduced at both the criminal trial and the habeas proceeding, Miller v. Commissioner, 242 Conn. 745, 747, 700 A.2d 1108 (1997); Gould v. Commissioner, 301 Conn. 544, 557-58, 22 A.3d 1196 (2011).
The first component of the Miller criteria requires the petitioner to produce affirmative proof that he did not purposefully participate in the charges for which he was convicted. " Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred, " Gould v. Commissioner, supra, at 563 (emphases in original). " Clear and convincing proof of actual innocence does not, however, require the petitioner to establish his guilt is a factual impossibility." Id.
Before embarking on this analysis, the court must confront a preliminary question. In the Gould case, our Supreme Court recognized, in a footnote, that that court has never decided whether the affirmative evidence of innocence must be newly discovered, Id., at 551, fn.8. The Supreme Court acknowledged, however, that the Appellate Court has imposed such a requirement, Id. See Ortiz v. Commissioner, 166 Conn.App. 635 fn.3, 145 A.3d 937 (2016).
Indeed, the Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Corbett v. Commissioner, 133 Conn.App. 310, 315, 34 A.3d 1046 (2012); Vazquez v. Comm'r of Corr., 128 Conn.App. 425, 444, 17 A.3d 1089 (2011); Gaston v. Commissioner, 125 Conn.App. 553, 553-558, 9 A.3d 397-59 (2010); Weinberg v. Commissioner, 112 Conn.App. 100, 119, 962 A.2d 155 (2009); Grant v. Commissioner, 103 Conn.App. 366, 369, 928 A.2d 1245 (2007); Johnson v. Commissioner, 101 Conn.App. 465, 469-70, 922 A.2d 221 (2007); Batts v. Commissioner, 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004); Clarke v. Commissioner, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999); Williams v. Commissioner, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This court is, of course, bound by these holdings of the Appellate Court.
Recently, the Appellate Court reiterated that habeas judges are bound by the requirement that the evidence of actual innocence be newly discovered, Thompson v. Commissioner, 172 Conn.App. 139, 158, 158 A.3d 814 (2017). " [E]ven though the final resolution of the newly discovered evidence standard has yet to be addressed by the Supreme Court, it is beyond argument that insofar as any Superior Court considering a claim of actual innocence in a habeas petition, the matter is closed ." Id. (emphasis added).
" Newly discovered evidence" is " such that it could not have been discovered previously despite the exercise of due diligence, " Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Due diligence is reasonable diligence. Id. The query to be answered is " what evidence would have been discovered by a reasonable [criminal defendant] by persevering application and untiring efforts in good earnest." Id.
The Appellate Court summarized the evidence from which the jury reasonably could have reached its guilty verdict:
" On August 18, 1996, Kevin Hood, the victim, and Tlara Phelmetta were riding around New Haven in Hood's car. They stopped in front of a convenience store at the well lit intersection of Columbus Avenue, Arch Street and Washington Avenue. Hood made some purchases at the convenience store, and, upon his return to the car, Phelmetta noticed a man with a hooded jacket walking toward the car from Washington Avenue. The man came up to the front passenger seat window where she was seated and peered through from about three feet away. She was able to look closely at his facial features before he turned away and walked around the back of the car, appearing to head away from the car. Suddenly, the man changed course and again approached the car. As he walked up to the driver's side, Phelmetta saw him withdraw a gun from underneath his shirt. The man leaned into Hood's open window and shot Hood several times. Phelmetta jumped out of the car through her window and fled to safety.
Thereafter, officers from the New Haven police department patrolling on Columbus Avenue came upon the victim. A few minutes later, Phelmetta returned to the scene and told a police detective that she had witnessed the shooting and gave a description of the shooter. The following day, on August 19, 1996, Phelmetta went to the police station, viewed a photographic array and identified the defendant as the shooter." State v. Bowens, supra, 149-50.
A
The petitioner's first candidate for newly discovered evidence is, in fact, not evidence at all. Rather, he contends that the change in the rules of evidence since his criminal trial pertaining to the admissibility of expert testimony, regarding the fallibility of eyewitness identification, satisfies the newly discovered evidence prerequisite.
At the time of the petitioner's criminal trial in 1998, such expert testimony was inadmissible. Our Supreme Court lifted this restriction in 2012 in the case of State v. Guilbert, 306 Conn. 218, 221, 49 A.3d 705 (2012).
A reinterpretation in the law of evidence may support a motion for reconsideration or provide good cause to overcome a procedural default barrier, but it is merely a newly announced rule of evidence rather than a newly discovered fact or circumstance bearing on the actual innocence of an individual. See Mu Fou Zhen v. Gonzales, 223 Fed.Appx. 15, 17 (2d Cir. 2007); and Luurtsema v. Commissioner, 299 Conn. 740, 12 A.3d 817 (2011).
B
Secondly, even if alteration of the legal landscape qualified as newly discovered evidence, the particular change of law in the present case cannot be characterized as affirmative proof of innocence as demanded by the Miller standard. A more vigorous attack on the witnesses' acumen and memory when identifying the petitioner as the perpetrator only weakens the prosecution case rather than " tend[s] to establish that the petitioner could not have committed the crime . .., that a third party committed the crime or that no crime actually occurred, " Gould v. Commissioner, supra, 563, (emphases in original). Simply casting doubt on the reliability of a state's witness, even a star witness, fails to qualify as affirmative proof of innocence, as the Supreme Court expressly determined in the Gould case, supra .
C
Next, the petitioner offers the testimony of Joseph Burns, Tychiah Harrison, and Amika Collins to show that a third person, Tyshawn Napoleon, may have committed the murder for which the petitioner was convicted. The identical third-party-culpability actual innocence claim was raised and adjudicated in the earlier habeas action.
The amended petition in that case, dated December 20, 2004, contained a second count which alleged that the petitioner was actually innocent; that his cousin, Tyshawn Napoleon, committed the crime, and that Tyshawn Napoleon had admitted his guilt to others. Judge Elgo ruled " [a]s to count two, which raises a claim of actual innocence, the court finds that the petitioner has fallen far short of meeting his burden of proof, " Bowens v. Warden, supra . The respondent submits that the doctrine of res judicata bars relitigation of this claim. Although it poses a knotty issue, the court agrees.
It is indisputable that res judicata can prohibit relitigation of comparable habeas claims previously adjudicated, Thorpe v. Commissioner, 73 Conn.App. 773, 778, 809 A.2d 1126 (2003); State v. Miranda, 274 Conn. 727, 772-73, 878 A.2d 1118 (2005). The court's research also discloses that successful res judicata defenses to actual innocence claims in habeas cases are rare but appropriate applications of this doctrine. " [S]imilar actual innocence arguments were previously raised and rejected in petitioner's prior habeas petition and may not be re-litigated under the doctrine of res judicata or claim preclusion, " Lardie v. Birkett, U.S. District Court, E.D. Michigan, Southern Division, d.n. 05-CV-74766, (February 19, 2008), Bernard A. Friedman, J., at 4-5, fn1 .
At least one Connecticut habeas court has dismissed a second actual innocence claim that had been adversely decided previously, Toccaline v. Warden, Superior Court, Tolland, Judicial District, d.n. CV 05-4000344 (June 23, 2008), Schuman, J., affirmed, Toccaline v. Commissioner, 119 Conn.App. 510, 987 A.2d 1097 (2010); cert. denied, 295 Conn. 921, 991 A.2d 566 (2010). " On January 29, 2008, the court granted the respondent's motion to dismiss [the actual innocence] count on the ground that the petitioner raised and litigated this claim in the first habeas petition and thus res judicata barred its relitigation, " Id. The petitioner in that case never challenged the dismissal on his appeal, Toccaline v. Commissioner, supra, 512, fn1.
It is true that the witnesses to Tyshawn Napoleon's incriminating utterances who testified in the present case never appeared as witnesses in the petitioner's earlier habeas trial. Indeed, the petitioner has raised this failure in his allegations of ineffective assistance against his previous habeas counsel, Attorney Cannatelli, in the fourth count of the present action. However, recourse to better evidence does not vitiate the preclusive effect of res judicata where the allegation of third-party culpability is identical to that put forward in an earlier proceeding. Res judicata precludes the metaphorical second bite of the litigation apple, AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 64 (2d Cir. 2003).
Res judicata in the context of habeas corpus jurisprudence differs from the general application of that doctrine in other civil cases in that it requires actual adjudication of the same claim rather than barring all claims that could have been raised, Thorpe v. Commissioner, supra, 777-79, fn7. The court holds that, utilizing this more restrictive view of the doctrine, res judicata bars relitigation of the actual innocence claim. The parties are, of course, the same, and the core circumstance of the actual innocence claim is identical to that decided by Judge Elgo in 2005, viz. that Tyshawn Napoleon had been heard implicating himself as the culprit in Mr. Hood's shooting death.
D
Alternatively, the court now addresses the merits of the actual innocence claim and determines that the petitioner has failed to fulfill the Miller criteria by clear and convincing evidence.
The sequence of events surrounding the shooting of the victim described by Tlara Phelmetta were unassailable. Her description was largely corroborated by the statement and testimony of a neutral, credible witness, Daniel Newell.
Newell, assistant director of a residential treatment center for adolescents, had driven to the convenience store adjacent to the crime scene to purchase a newspaper. He recounted that, at some point while in his vehicle, he observed a young black male, wearing a hooded sweat jacket, and having disheveled appearance, approach right up to the driver's window of the victim's car and fire several shots into the vehicle. Newell then saw Phelmetta leap out of the front passenger window and run for safety. While Newell did not see the shooter approach and peer into the passenger side window shortly before the murder, as Phelmetta related, it is quite plausible that his attention was elsewhere until the shooting occurred.
Phelmetta had no reason to fabricate her encounter with the perpetrator. She had no connection with the petitioner or his friends or family. She selected the petitioner's photograph from an eight-person array and positively identified the person depicted therein as the shooter. The trial court and the Appellate Court concurred that this identification procedure was not unnecessarily suggestive.
A resident of the neighborhood, Hilda Diaz, knew the petitioner because, at times, he lived across the street from her. She recognized and identified the petitioner as the person fleeing from the scene immediately after the shooting, and she also corroborated the testimony of other witnesses about the fact that the petitioner frequently visited and stayed overnight at a house close to the crime scene.
This evidence contradicted the petitioner's alibi evidence which placed him across town in the Fair Haven section at the time of the homicide. Diaz' description also supported the testimony of witnesses regarding the culprit's escape route and activities after the deadly encounter.
Despite being related to the petitioner by blood or marriage and having occasionally lived in the same house where the petitioner and Tyshawn Napoleon sometimes resided, none of the three witnesses who testified at the present habeas trial that Napoleon implicated himself as the real shooter, came forward with this information until after Napoleon's tragic death some years after the petitioner's criminal trial. In order to credit the testimony of Brown, Harrison, and Collins, a fact-finder would have to believe that these three individuals, all of whom were well aware the petitioner's plight, chose to ignore the grievous injustice suffered by their kin for years while he languished in prison.
As noted above, the revelations of these witnesses about Tyshawn Napoleon were withheld until after Napoleon's unfortunate demise. The surfacing of these accusations only after Napoleon could no longer be called to account taints their testimony with the scent of fabrication to benefit the petitioner. One can argue that these witnesses delayed reporting the conversations with Tyshawn Napoleon, which exonerated the petitioner, for fear of these reports leading to Napoleon's arrest. Napoleon was also a relative of the witnesses. However, clear and convincing proof is more exacting than that sufficient to establish a probability of actual innocence. Clear and convincing evidence is substantial and unequivocal evidence that demonstrates a very high probability that the fact to be proven is true, State v. Thompson, 305 Conn. 412, 425, 45 A.3d 605 (2012); Gould v. Commissioner, supra, 560.
It is at least equally persuasive that these witnesses took advantage of Napoleon's earthly departure as a convenient occasion to cast false blame on him to rescue the petitioner from his fate as it is to believe that these witnesses allowed the petitioner to sit in prison for years for a crime of which they knew he was innocent. The equivocal motivations for the witnesses' belated revelations fail to convince the court, by clear and convincing evidence, that the petitioner is factually innocent of Mr. Hood's murder nor that no reasonable fact-finder would convict the petitioner of that crime after consideration of a combination of the evidence adduced at both the criminal trial and the habeas proceedings, as mandated by the Miller standard.
II
Freestanding Due Process Claim
In the second count of the amended petition, the petitioner contends that the trial court applied the law, as it then existed, to exclude expert testimony regarding eyewitness observation and recollection. He argues that such prohibition denied him the due process of law despite the lawfulness of the evidentiary ruling at the moment it was made. This contention also provides no ground for habeas corpus relief.
It is highly dubious to predicate a due process violation on a trial court's faithful adherence to the precedents passed down from appellate tribunals. The petitioner concedes that the law of evidence in Connecticut when the petitioner had his criminal trial forbade the admission of expert testimony regarding eyewitness identification.
The Guilbert holding allowed scientific evidence from expert witnesses bearing on the reliability or unreliability of eyewitness identification to be considered by the factfinder. The Guilbert decision did not mandate the introduction of such testimony in every case. State v. Faust, 161 Conn.App. 149, 192-93, 127 A.3d 1028 (2015); cert. denied, 320 Conn. 914, 131 A.3d 252 (2016).
The Guilbert loosening of our rules of evidence created no new constitutional right, State v. Faust, supra . In that case, our Appellate Court categorized the failure to instruct the jury in accordance with the freshly announced principles of Guilbert as " nonconstitutional, " Id. Consequently, harmless error analysis applies to such omission, Id.
Although an unnecessarily suggestive identification may implicate a constitutional right, and Connecticut trial courts are now free to utilize scientific advances in the study of eyewitness reliability in evaluating suggestibility and unreliability, the recent availability of such information fails to invalidate, through habeas corpus, every criminal conviction supported by eyewitness identification of an accused that preceded the rule change. " We have concluded . . . that the potential unreliability of [eyewitness identification] evidence does not alone render its introduction at the defendant's trial fundamentally unfair, " Perry v. New Hampshire, 565 U.S. 228, 245, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). " The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its credit worthiness, " Id. " [W]e hold that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement, " Id., 248.
As mentioned above, the Appellate Court specifically held that Phelmetta's identification of the petitioner as the perpetrator was not unnecessarily suggestive, State v. Bowens, supra, 157-58. Therefore, the petitioner cannot prevail on this claim.
III
Ineffective Assistance of Trial Counsel
The third count alleges various instances of ineffective assistance of trial counsel, Attorney Ullman. This claim must be dismissed, pursuant to Practice Book § 23-29(3) because it presents the same grounds for relief denied in his earlier habeas case, namely the ineffective assistance of defense counsel and which are not based on new facts or evidence " not reasonably available at the time of the prior petition." The addition of new specifications of ineffective assistance against Attorney Ullman is insufficient to state new legal ground different from that raised by the previous habeas petition McClendon v. Commissioner, 93 Conn.App. 228, 230, 888 A.2d 183 (2006); cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
Of course, the failure by Attorney Cannatelli to assert and prove these specifications of ineffective assistance can form the basis for a claim of ineffective assistance by previous habeas counsel, and the petitioner asserts just such a claim in the present case. Again, this claim provides no basis for habeas corpus relief.
IV
Ineffective Assistance of Habeas Counsel
In the fourth count of the amended petition, the petitioner avers that Attorney Cannatelli represented him ineffectively in his first habeas case in that habeas counsel inadequately investigated and presented the actual innocence claim; that he failed to withdraw the actual innocence claim once it became apparent that the claim was unprovable; that he failed to establish that trial counsel, Attorney Ullman, represented the petitioner ineffectively.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney's performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the questions of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
Also, in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel were ineffective, and (2) that his trial counsel was ineffective, Id. Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double layered obligation as " a herculean task." Id., 843.
A
The petitioner first alleges that Attorney Cannatelli deficiently investigated and presented his actual innocence claim at the previous habeas hearing. As expounded above, the only newly discovered evidence that affirmatively tended to demonstrate the petitioner's actual innocence were the incriminating statements attributed by Burns, Harrison, and Collins to Tyshawn Napoleon. Thus, any purported ineffective assistance by Attorney Cannatelli as to this specification must derive, if at all, from his failure to investigate and present equivalent testimony at the first habeas trial.
No evidence was adduced at the present trial showing that Attorney Cannatelli knew or should have known that Burns, Harrison, and/or Collins possessed this exculpatory information. All three witnesses acknowledged that, despite knowing of the petitioner's conviction and/or imprisonment, no one came forward and communicated to anyone else Tyshawn Napoleon's comments. Police officers shot and killed Napoleon in March 2005.
Amika Collins was Tyshawn Napoleon's girlfriend in the past. On one occasion, she reported him to the police for having threatened to kill her. However, she never used that opportunity to inform the police about this reputed involvement in the victim's shooting.
Joseph Burns was a close friend of Tyshawn Napoleon and regarded Napoleon, the petitioner, and their family as his own. Burns resided at 26 Franks Street with the petitioner and Napoleon for a period of time. He knew the petitioner for more than twenty-six years.
Burns was convicted of robbery and weapons charges in 1993 and 1995, respectively, and was incarcerated from March 1996 to 1999. While imprisoned, he learned of the petitioner's arrest and conviction.
Burns testified that, shortly after his release from prison in 1999, he encountered Napoleon who confided to him that it was he who murdered the victim rather than the petitioner. However, Burns also never communicated this admission to anyone because of the " code of the streets."
Tychiah Harrison was a second cousin of both the petitioner and Tyshawn Napoleon. She testified that she knew the petitioner since childhood and lived on Franks Street in 1996. Some years after the incident, Napoleon told her, on two occasions, that he shot the victim. Other than with respect to her grandmother, Harrison also kept this information secret. She ascribed her silence to resignation that the police would be unreceptive.
Attorney Canntelli testified that the petitioner told him that Tyshawn Napoleon may have bragged about killing the victim. However, neither the petitioner nor his family could supply names of persons who reputedly overheard these remarks.
At the present habeas trial, the petitioner proffered the testimony of a legal expert, Attorney Michael Sheehan. Attorney Sheehan is a highly experienced and learned criminal defense lawyer. Although Attorney Sheehan criticized Attorney Cannatelli for failing to withdraw the actual innocence claim because it was unsupported by evidence, Attorney Sheehan never faulted Attorney Cannatelli for poor investigation or presentation of the actual innocence claim.
The court concludes that the petitioner has failed to satisfy his burden of proving, by a preponderance of the evidence, that Attorney Cannatelli rendered substandard legal assistance as to this specification of ineffective representation.
B.
The court now addresses the petitioner's contention that Attorney Canatelli acted deficiently by failing to withdraw the actual innocence claim. As just noted, Attorney Sheehan opined that Attorney Cannatelli ought to have withdrawn that claim once it became clear that evidence tending to show that Tyshawn Napoleon inculpated himself in Hood's murder was lacking. The petitioner argues that pursuing this unsupported ground deprived the petitioner of the opportunity to press an actual innocence claim based on the same allegation in a subsequent habeas action should stronger evidence emerge incriminating Napoleon in the future. In other words, the failure to withdraw this weak claim would expose the petitioner to forfeiting the ability to raise it anew because of the doctrine of res judicata.
Judge Elgo specifically inquired whether the petitioner continued to rely on the actual innocence count, and Attorney Cannatelli responded affirmatively despite acknowledging the paucity of evidence demonstrating that Napoleon confessed as alleged.
1
Typically, an accusation of ineffective assistance involves counsel's supposed failure to investigate and/or present a worthy defense or significant evidence. The present specification of ineffectiveness is peculiar in that it is premised on the improvident assertion of a ground that ought to have been abandoned. Despite Attorney Sheehan's opinion that withdrawal of the previous actual innocence claim would have preserved those allegations for future litigation, it is unclear that the legal effect would succeed.
Our appellate cases have exhibited some inconsistency as to whether a withdrawal of a habeas claim, before the taking of evidence begins, is with prejudice or otherwise. In Kendall v. Commissioner, 162 Conn.App. 23, 130 A.3d 268 (2015), the Appellate Court held that General Statutes § 52-80 applies and that a habeas petitioner has the right to withdraw a claim without prejudice, Id., 50-51. More recently, the Appellate Court retrenched somewhat from that position and ruled that a petitioner' activity before trial could warrant a finding that a withdrawal be deemed with prejudice, Marra v. Commissioner, 174 Conn.App. 440, 166 A.3d 678 (2017); cert. denied, 325 Conn. 906, 156 A.3d 536 (2017).
In Marra, supra, the Appellate Court approved a determination that a withdrawal filed a few days before trial was to commence, which was prompted by the lack of supporting evidence, was with prejudice, Id., 460-61. That court characterized a withdrawal filed for the purpose of avoiding an unfavorable outcome at a habeas trial as " gamesmanship" and " procedural chicanery, " that trial courts should not countenance, Id. The decision in Marra distinguished the Kendall case by limiting the latter holding to one simply determining when an evidentiary hearing begins for purposes of § 52-80, rather than ruling that § 52-80 confers upon a habeas petitioner the power to withdraw claims on the eve of trial with impunity, Marra v. Commissioner, supra, 456.
Relevant factors, such as whether the habeas trial date had long been scheduled; whether the trial had been postponed previously; whether trial was imminent; and whether prejudice in the form of unnecessary expense or inconvenience would be sustained by witnesses or other concerned persons, can dictate whether a withdrawal would be with or without prejudice. Disappointment in the quality of available proof may be insufficient to permit resuscitation of a habeas claim by withdrawing a weak case in the hope that future developments will enhance the result of a subsequent proceeding.
In the present matter, the state of the evidence fails to reveal at what point Attorney Cannatelli ought to have withdrawn the actual innocence claim to perform effectively. There is no allegation that Attorney Cannatelli wrongly included an actual innocence claim in the operative petition in the previous habeas case. Had that claim been withdrawn close to trial, it is quite possible that a subsequent habeas filing containing the same ground would have been met with defenses of deliberate bypass, procedural default, or a Marra -type finding of withdrawal with prejudice, especially because the undisputed motivation for withdrawal would have been fear of failure.
The court concludes that the petitioner has failed to prove the deficient performance prong of the Strickland test as to this specification of ineffective assistance.
2
In any event, in section I.D. of this memorandum of decision, the court addressed the lack of merit of the petitioner's actual innocence claim based on the reputed admissions uttered by the late Tyshawn Napoleon. For the reasons elucidated by the court in that subsection, the petitioner has also failed to met his burden that, but for Attorney Cannatelli's pursuit of that claim in the first habeas trial, there exists a reasonable probability that the outcome of that proceeding would have been more favorable.
C
The remaining specifications of ineffective assistance of previous habeas counsel arise from Attorney Cannatelli's purported failure adequately to plead and demonstrate that Attorney Ullman was derelict during his representation of the petitioner in his criminal case. As required by Lozada v. Commissioner, supra, the petitioner must prove a case within a case. At trial, and reiterated in the petitioner's posttrial brief, the petitioner has trimmed his specifications of ineffective assistance of defense counsel to two. See Petitioner's Amended Posttrial Brief, pp. 19 and 20. These are Attorney Ullman's inept impeachment of Crystal Bethea and inadequately investigating generally.
1
After the conclusion of the defense case, the prosecutor called Crystal Bethea to rebut the alibi testimony of the petitioner, Celena Jackson, Turquoise Cox, and Stacy Bethea. Those witnesses swore that the petitioner spent the pertinent portion of the evening of the homicide with one or more of them at an apartment distant from the scene of the shooting of Hood, and the residence of Crystal Bethea in Fair Haven. According to their testimony, Celena Jackson and the petitioner went to Bethea's apartment to see Turquoise Cox on her birthday and was there for some time.
Crystal Bethea contradicted this alibi evidence by avowing that she did not know the petitioner, had never seen him before in her life, and did not recall seeing him on August 18, 1996, at or near her apartment. Over the prosecutor's repeated objections, Attorney Ullman cross examined Crystal Bethea about the individuals she recalled who attended the birthday gathering on August 18, 1996; that she had been drinking that evening; and that she recalled the presence of Jackson, Cox, and Stacy Bethea at her residence that evening.
Early in his representation of the petitioner, Attorney Ullman spoke to all potential alibi witnesses on multiple occasions or had his investigator, Donna Harris do so. On September 9, 1996, less than one month after the murder, Ms. Harris conversed with Crystal Bethea, by telephone, and ascertained that Bethea recalled seeing the petitioner and the other guests at her apartment on the evening of Cox's birthday. Bethea told Harris that the petitioner and Celena Jackson were already at her residence when Crystal Bethea arrived around 9:30 p.m., and that they remained there until they left, by taxi, around 12:30 a.m., on August 19, 1996.
On June 3, 1998, Attorney Ullman met with Crystal Bethea at her residence. He met with her again on June 5, 1998, at the courthouse. Although Attorney Ullman presented the testimony of Celena Jackson, Turquoise Cox, and Stacy Bethea as defense witnesses, he declined to call Crystal Bethea, in that capacity. Attorney Ullman informed the trial judge, outside the presence of the jury, that he intentionally elected not to call her as an alibi witness.
During cross examination, Attorney Ullman refrained from confronting Crystal Bethea about her telephone conversation with Donna Harris in which she confirmed Tyreese Bowen's presence at the birthday gathering of August 18, 1996. In the present habeas trial, Attorney Ullman could not recall why he never pursued that line of impeachment of Crystal Bethea.
Attorney Sheehan testified that Attorney Ullman's failure to cross examine or otherwise impeach Crystal Bethea's rebuttal testimony utilizing her oral statement to Donna Harris fell below reasonable professional practice. Attorney Cannatelli never raised this allegation of deficient performance in the earlier habeas case.
Neither party called Crystal Bethea to testify for the present case. The court is left to speculate as to her response to being confronted with an obviously inconsistent prior statement. There is good reason why " [a] witness who has been impeached on cross-examination by the admission of a prior inconsistent statement is generally entitled to explain that contradictory statement, " C. Tait and E. Prescott, Connecticut Evidence (5th Ed. 2014) § 6.35.2, p. 417 (emphasis added). " Proof that a witness had made a prior inconsistent statement, by extrinsic evidence . . . is not generally permissible unless the witness has first been asked about the statement, " C. Tait and E. Prescott Connecticut Evidence (5th Ed. 2014) § 6.35.5, p. 420; Conn. Code Evid. (2009) § 6-10(b) and (c).
In evaluating this issue, the court must keep in mind that Crystal Bethea's oral statement to Donna Harris could only have use at the criminal trial to undermine her credibility rather than for substantive proof of alibi, State v. Graham, 200 Conn. 9, 18, 509 A.2d 493 (1986).
Present habeas counsel acknowledges in the posttrial brief that Attorney Ullman is " deservedly highly respected in the Connecticut legal community." Also, Attorney Sheehan holds Attorney Ullman in high regard. Attorney Ullman spoke with Crystal Bethea twice in the days just before he purposefully decided she would not be a defense, alibi witness. Even though Attorney Ullman cannot currently recollect why he failed to cross examine Crystal Bethea about her inconsistent statement to Donna Harris, the court is hesitant to draw the inference that such omission was the result of oversight rather than discretion. While such an inference would be reasonable and permissible, as the fact-finder, the court is free to reject the inference, State v. Franklin, 175 Conn.App. 22, 37, 166 A.3d 24 (2017).
When a highly experienced and capable defense lawyer's representation is called into question, " the habeas court must presume that counsel acted competently, and the burden lies with the petitioner . . . to overcome this presumption . . ." Budziszewski v. Comm'r of Corr., 322 Conn. 504, 516 fn2, 142 A.3d 243 (2016). This presumption operates even when trial counsel cannot recall why the attorney engaged in the particular course of action, Id. The failure to remember a reason is not equivalent to lacking a good reason, Id. In the absence of evidence to the contrary, a habeas court should presume that counsel satisfied the obligation to render competent legal assistance, State v. Celaj, 163 Conn.App. 716, 724, 141 A.3d 870 (2016).
Attorney Ullman placed before the jury three alibi witnesses to corroborate the petitioner's testimony that he was in the Fair Haven projects at a birthday gathering when the shooting happened across town. That one person failed to recall his presence may very reasonably have appeared to Attorney Ullman as having slight negative impact without probing the reason why Crystal Bethea changed her listing of the attendees on August 18, 1996.
Attorney Ullman personally spoke to Crystal Bethea twice during the trial as recently as four days before her testimony. Whatever information he gleaned from her motivated Attorney Ullman to decline to call Crystal Bethea as a witness and may have caused him to be cautious when cross examining her as a rebuttal witness. It is difficult to envision that Attorney Ullman met with her at her home and again at the courthouse and never discussed with her her previous oral statement to his investigator when attempting to ascertain if he should present her as a defense witness.
The court finds that the petitioner has failed to prove, by a preponderance of the evidence, that Attorney Ullman performed below acceptable professional practice as to this specification.
Also, the court finds that the petitioner has failed to prove the prejudice component of the Strickland test as to this issue. The prosecutor's examination of Crystal Bethea was confined to whether she recognized the petitioner. She swore that she never knew him or saw him previously. Attorney Ullman elicited on cross examination that, on the evening in question, she had been drinking.
In his posttrial brief, the petitioner argues that Crystal Bethea's testimony was devastating to the alibi defense. Apparently, both Attorney Ullman and the prosecutor perceived the effect of her testimony to be otherwise.
In his opening summation, the prosecutor never mentioned Crystal Bethea at all. On the other hand, he stressed that the testimony that " validated" proof beyond a reasonable doubt came from Phelmetta, Levy, Newell, and Diaz. Attorney Ullman also made no reference to Crystal Bethea in his closing argument. In his final opportunity to address the jury, the prosecutor briefly commented that Crystal Bethea denied ever seeing the petitioner before.
The prosecutor's summation zeroed in on the testimony of Phelmetta and Hilda Diaz. Recall that Diaz swore that she knew the petitioner as a person who she frequently saw in her neighborhood close to the crime scene. She identified him as the individual who fled from that location consistent with the conduct described by other witnesses. After a careful review of all the evidence, the court finds that the identification of the petitioner by Phelmetta and Diaz predominated in persuading the jurors of the petitioner's guilt beyond a reasonable doubt despite the alibi testimony rather than Crystal Bethea's lack of recognition of the petitioner.
2
The petitioner also contends that it was essential for Attorney Ullman or his investigator to have met with the alibi witnesses, in person, soon after Attorney Ullman assumed the petitioner's defense. An early meeting would have memorialized the details of the alibi freshly experienced by the witness. The petitioner laments Attorney Ullman's failure to conduct such personal encounters with these witnesses.
Attorney Ullman credibly testified that he immediately recognized the importance of interviewing alibi witnesses and promptly obtained from the petitioner their names. He directed Donna Harris to contact these witnesses, who spoke, by telephone, to these witnesses less than one month after the petitioner's arrest. Attorney Ullman wanted this information gathered expeditiously so that he could utilize it in a bond reduction argument. Ms. Harris either talked with or attempted to talk with each alibi witness multiple times before the notice of alibi defense was filed on October 15, 1996, less than two months after the murder.
It is difficult to apprehend why Attorney Ullman should have acted more swiftly than he did. The court finds that Attorney Ullman represented the petitioner well within the bounds of effective representation in seeking out and securing information to substantiate the petitioner's alibi defense.
The court has compared the testimony of the alibi witnesses at the criminal trial with their testimony during this habeas case and cannot detect any substantial deviation caused by Attorney Ullman's handling of the petitioner's criminal case.
3
Because the court concludes that none of the specifications of ineffective assistance now propounded by the petitioner had merit, the court also determines that Attorney Cannatelli represented the petitioner reasonably and professionally in the first habeas case with respect to Attorney Ullman's conduct of the petitioner's criminal matter.
IV
Cruel and Unusual Punishment Claim
The petitioner's final claim is that, because he was seventeen years old at the time of the murder, his fifty-year prison sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Article I, § § 8 and 9 of our state constitution. The respondent's res judicata defense bars this claim from being relitigated in this habeas case.
The petitioner raised and fully litigated this precise claim on its merits in a motion to correct an illegal sentence filed in the criminal court, State v. Bowens, Superior Court, New Haven Judicial District d.n. CR 96-436046 (March 29, 2017), Clifford, J. The trial court denied the motion which asserted the same grounds as contained in the fifth count of the habeas petition. That denial is presently an appeal before the Appellate Court, State v. Bowens, AC 40727.
For these reasons, the court denies the petition for habeas corpus relief on all grounds.